By Cass Sunstein
If President Donald Trump carries through on his promise to end birthright citizenship for the children of illegal aliens, he will probably lose in court. But don’t be surprised if the ultimate ruling is narrow: To do what he wants, the president needs unambiguous authorization from Congress — and he hasn’t got it.
The governing principle is called the “canon of constitutional avoidance” — for short, the Avoidance Canon. It’s a technical idea, but it has immense importance. It links individual rights with the safeguards of checks and balances. It puts the genius of the U.S. constitutional system on fine display.
To see how the Avoidance Canon works, and how it constrains any president, let’s travel back to 1958 (a time in many respects like our own). During the cold war, many Americans were worried about subversion by the Soviet Union, and about communists both inside and outside the U.S.
The secretary of state, John Foster Dulles, denied a passport to artist Rockwell Kent on the ground that Kent was a communist. Dwight Eisenhower was president at the time, and Dulles was probably following Eisenhower’s direction.
Kent responded that the denial of a passport violated not one but two constitutional rights: his right to travel and his right to freedom of speech.
In the great case of Kent v. Dulles, the Supreme Court did not accept Kent’s argument. But it didn’t reject it, either.
Far more modestly, the court said Kent had pointed out a serious constitutional problem, and that in light of that problem, judges “will not readily infer that Congress gave the Secretary of State unbridled discretion.” True, Congress appeared to give the secretary exactly that. But the court insisted that it would not find, in Congress’s seemingly open-ended words, a grant of authority to deny citizens the right to travel on the basis of their political convictions.
The court did not say that Congress lacked the constitutional power to give such authority to the secretary of state. It avoided that question. Instead it ruled that the national legislature, with its distinctive form of accountability, would need to make an explicit, concrete and focused judgment in favor of denying a passport to Kent (and others like him). The secretary of state — and even the president — would not be allowed to make that judgment on their own.
Since 1958, the Avoidance Canon has been used on countless occasions. The Supreme Court has used it to protect freedom of speech, religious liberty, and many other rights and interests. The court’s goal is to enlist democratic safeguards while also showing a degree of judicial humility — to say that whether or not the Constitution allows Congress to move in a certain direction, the executive branch cannot do so unilaterally.
Turn to Trump’s proposal in this light. In his words: “You can definitely do it with an Act of Congress. But now they’re saying I can do it just with an executive order.”
It’s unclear who “they” are. Most specialists in constitutional law think that even with an Act of Congress, you definitely cannot do it. True, some law professors think that Congress does have that power. But put to one side the question whether the minority view is plausible.
No one can deny that a presidential decision to deny citizenship to those born in the United States would raise a serious constitutional question. That is enough to justify invoking the Avoidance Canon.
It’s true that many people, including many scholars, would like it much better if the courts invoked the heavy artillery and ruled, flatly and definitively, that under the Constitution, the children of illegal aliens have to be counted as citizens. In the end, they might well have the Constitution right.
But sometimes it’s best to use a scalpel, not an ax. If Trump tries to eliminate birthright citizenship, many federal judges will want to say: At a minimum, you have to go to Congress first. You can’t do it by fiat.
Cass R. Sunstein is a Bloomberg Opinion columnist. He is the editor of “Can It Happen Here? Authoritarianism in America” and a co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.” This column does not necessarily reflect the opinion of Minnesota Lawyer, the Bloomberg editorial board or Bloomberg LP and its owners.